Bill 139: Submissions, Committee discussion, passage

August 10, 2017

The Greenspace Alliance today sent in its comments on the planning aspects of Bill 139. The letter is here. Some highlights:

We strongly support much of this Bill, in particular the end of de novo hearings and the move to a court-of-appeal type regime, the creation of a Support Centre for citizen-appellants and mandatory case management for all appeals.

We strongly oppose, however, the proposed inability to appeal an Official Plan or Comprehensive Official Plan Amendment when the approval authority is the Minister (as is the case for Ottawa). We also argue that inconsistency or nonconformity with the Planning Act should be a ground for appeal.

We raise a number of other questions and concerns and conclude that, while most of these reform proposals are welcome, they will not by themselves cure what ails Ontario’s land planning system. Periodic seeking of local and provincial consensus on what makes for “good planning” — what are the acceptable planning criteria — is the key requirement.

Locally, an October 17 memo to Council from Stephen Willis was tabled at Planning Committee, which provides an update on the status of Bill 139 and an extremely brief summary of the Bill. The only new element in the memo is that, when the City makes a second decision after a successful appeal and this decision is appealed again, it “is staff’s understanding that at the second hearing, witnesses and evidence can be introduced.” Comment: This is nowhere found in the Bill. Added to the assertions by Min. Naqvi quoted below it makes for a confusing picture of how reformed hearings will work.

At Queen’s Park, the Standing Committee on Social Policy held hearings on Bill 139 on October 16 and 17. Many individuals and groups (including the Alliance) applied to be heard but few were chosen. Not given a chance to speak, we sent in a note focusing on three “asks”:

1- following Ministerial approval of a 1-tier municipality’s Official Plan or Comprehensive Official Plan Amendment, appeals should be allowed;

2- non-conformity with the Planning Act should be a ground for appeal; and

+ MPPs Hardeman and Miller list all the groups and persons that applied but will not be heard. (Two hearing dates later in the month were cancelled.)

+ Jennifer Keesmaat, former chief planner for Toronto: “An interesting thing has happened that is one of the absurd outcomes of the OMB. The development industry said to us, “Give us as-of-right zoning,” and so we did. We want to see new development and intensification along our transit corridors. This is a critical part of combatting congestion. What’s happened is, even though we have in fact done so, we have seen developers coming back and asking for more. This is the speculative nature of development in a high-growth city that the OMB enables. If we create policy that’s based on sound planning principles, should that not be the policy that directs how we change and grow? The community really made a social contract in that process. They supported as-of-right zoning, recognizing that it was going to be compatible with the city’s guidelines around creating a walkable city, mitigating the shadow impacts. But, in fact, what we’ve seen as a result of the opportunity of an OMB that doesn’t currently respect the policy of local councillors is a whole industry that has been built on speculation. This is not in our best interests.” (underlining added)

+ Councillor Leiper: “I would imagine, as we are making the case for light rail and we need to get people living near transit stations in order to support the transit business case, that the city presumably would put in place some limits on the appealability of planning decisions in the vicinity of transit stations. …. this should only be done where there is up-to-date, defensible secondary planning that has been done.“

+ Minister Naqvi: “The tribunal will … have the power to ensure hearings are effective and fair by requiring parties to produce evidence or witnesses for examination by the tribunal, where appropriate.“

+ Same: “I’m hoping to have this bill passed before the end of the year.“

+ Same: “We feel that these proposed reforms would empower the tribunal to actively guide the proceedings in order to level the playing field and make it less adversarial for parties and participants. For example, the proposed reforms would empower the tribunal to test the evidence. They would give the tribunal the power to examine parties, participants and witnesses who appear before it. The tribunal will also have the power to require parties to provide information and documentary evidence, to testify before the tribunal and to produce witnesses for examination by the tribunal.

In addition, the proposed reforms would require the tribunal to hold a case management conference … in all major land use planning appeals. The purpose of the case management conference would be to identify, define and narrow the issues; identify facts or evidence that may be agreed upon by the parties; and identify evidence that should be obtained and witnesses who should be examined. At the case management conference, parties may also be given an opportunity to propose questions for the tribunal to ask witnesses.“

The Committee held further meetings on the Bill on October 23-24, 30-31 and November 14-15. Third Reading debates took place on November 23 and 29, and December 5, 6 and 12. The Bill passed in an 86 to 1 vote and received Royal Assent on December 12. The Bill as revised by Committee and passed is here. A clean version of the final bill is here. Some key changes to the Bill made by Committee are:

+ The new Tribunal is empowered to accept a consent settlement of an appeal, except if any part does not conform to provincial or municipal policy (new ss. (17(49.4) and (49.5)) and similar related provisions).

+ When there is no right of appeal of a provision in an Official Plan then that provision comes into effect on the day of the decision on the Plan (new ss. 17(27.1 and (38.1)).

On December 13, a “Decision” was posted to the EBR site (EBR 012-7196) that provides a fairly detailed summary of the more than 1,100 written submissions received regarding the planning component of Bill 139. (The “decision” to introduce Bill 139 is at EBR 013-0590, in response to a notice first posted on May 31, 2017.)